Proposal would make governor’s ‘working papers’ off limits

Gov. Paul LePage pauses as he answers questions at a news conference at the State House in Augusta on Tuesday, Dec. 6, 2011.

AUGUSTA, Maine — Members of the state’s right-to-know advisory committee on Thursday approved a proposal from the governor’s office that would exempt all of his “working papers” from the Freedom of Access Act, perhaps until the end of each legislative session.

The right-to-know advisory committee is made up of media members, lawmakers and other state officials representing the areas of law enforcement, schools, courts, counties, municipalities and the public.

In a 10-5 vote, that committee recommended the Legislature’s Judiciary Committee — and ultimately the full Legislature — approve the governor’s exemption next session.

The Legislature long has enjoyed the same exemption for working papers, broadly defined as anything written down that could contribute to proposed legislation.

Michael Cianchette, deputy counsel for Gov. Paul LePage, said Friday his request simply allows the governor and his inner circle to have the same privilege as lawmakers.

Sen. David Hastings, R-Fryeburg, one of two legislators on the committee, said he supports an exemption both for lawmakers and the governor.

“I’ve never really given this a lot of thought, but no one has ever asked me for anything I would consider a working paper,” Hastings said. “The exemption has never been a problem that I know of … Everything will become public eventually.”

Other members of the committee disagreed.

“This runs completely contrary to what the governor has said about transparency,” said Judy Meyer, managing editor of the Lewiston Sun Journal and co-chairman of the right-to-know committee. “It’s hypocritical.”

Meyer said she and some other members of the committee support removing the Legislature’s exemption, too. Before the committee’s vote on the governor’s exemption, member Mal Leary made a motion on Thursday to remove the legislators’ exemptions from Maine’s FOAA.

That motion failed.

“They should not continue to exempt themselves,” said Leary, who runs Capitol News Service out of the State House. “We hear a lot of rhetoric on the floor of the House and Senate talking about open government, yet they’ve kept this little carved-out piece where they’re exempt from the law.”

Shenna Bellows, director of the American Civil Liberties Union of Maine and a right-to-know advisory committee member, also opposed any exemptions for the governor or lawmakers.

“I think as an organization that advocates for privacy I understand very deeply the desire for privacy even when you have nothing to hide,” Bellows said during Thursday’s meeting. “At the same time, I think our elected officials have a higher responsibility and I don’t think information is dangerous. I think information is healthy.”

The issue with the governor’s office dates back several months.

In a letter sent to members of the right-to-know advisory committee in July, Gov. LePage said he believes that “an open government is an honest government.” However, the governor also said he had concerns about what constitutes government business.

“We have received [FOAA] requests for all grocery receipts from the Blaine House,” he wrote. “The staff of the Blaine House conducts the shopping — it is not something I involve myself in. I understand that taxpayers have a legitimate right to know the amount of money being spent in their house, but the intimate details of our diet goes far beyond funds and into the private details of my family’s life.”

LePage also said he believes some people have been abusing Maine’s FOAA for political purposes and that concern is what prompted the recent request, according to Cianchette.

“My office has received a number of incredibly broad requests that have taken hours and hours of staff time,” LePage wrote in July. “While my team has diligently responded to these requests, none of the information has actually been made public by the requester. They were made simply to gum up the work of my office and prevent us from moving initiatives forward.”

Partisan records requests are not new, though. When Gov. John Baldacci was in office, Republicans and even some Democrats often used the FOAA law to get information, according to Leary.

Under Maine statute, official records of the Legislature itself are subject to the Freedom of Access Act. However, all legislative papers and reports, working papers, drafts, internal memoranda and similar works in progress are not public until signed and publicly distributed in accordance with rules of the Legislature.

By comparison, records of the executives, such as governor, mayor or commissioner of a department, are subject to the FOAA if the records have been received or prepared for use in connection with the transaction of public or government business, or if they contain information relating to the transaction of public or governmental business.

Cianchette said the governor’s exemption largely would mirror what is on the books for the Legislature.

“It doesn’t cut against transparency because as soon as a bill is presented, all documents become public,” he said. “This just protects the decision-making process.”

Hastings quipped on Thursday that lawmakers sometimes say some pretty dumb things during the process that the public doesn’t necessarily need to hear.

Neither portion of Maine’s FOAA related to the executive and legislative branch has been litigated, according to Portland-based attorney Sigmund Schutz, who specializes in media law.

Other states are split on this issue, but there are fewer states that exempt their governor’s offices from public records laws than states that have no exemptions, according to the Reporters Committee for Freedom of the Press. However, in Massachusetts, which does not have an exemption for the executives, Gov. Deval Patrick has asserted successfully that he is exempt from the state’s public records law.

L. Sandy Maisel, professor of government at Colby College, said Friday he sides with the governor on this issue.

“I guess it depends on what working papers are, but if they are internal documents used to help him make a decision, it seems that they should be protected,” he said. “You don’t want a chief executive who is so isolated and whose aides are refrained from giving controversial advice.”

Maisel said he actually thinks an exemption for the executive branch makes more sense than one for the Legislature.

Lance Dutson, chief executive officer of the conservative Maine Heritage Policy Center, an organization that frequently lobbies for transparency and open government, initially said he supports an exemption for the governor, although he had not reviewed the proposal.

“Without it, the risk is that political parties will constantly [request records] of each other,” he said Friday.

On Saturday, Dutson indicated in an email that he does not support what was proposed by the governor’s office.

Meyer had a hard time accepting the governor’s motive. Initially, she said, he was concerned about turning over grocery receipts, but that quickly morphed into all business conducted by the governor’s office. Leary’s biggest concern was the lack of a definition for “working papers.”

The Legislature’s Judiciary Committee is expected to take up the matter in January..